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New Guidance on Trump’s Revised Travel Ban Effective June 29

July 28, 2017

New guidance
explaining the criteria for visa applicants was issued by the Department of
State to U.S. embassies and consulates late on June 28, 2017, according to
reports. The guidance will go into effect on June 29, at 8:00 p.m. EDT.

The guidance
is in response to the U.S. Supreme Court’s June 26, 2017, partial reinstatement
of President Donald Trump’s revised Executive Order (dated March 6, 2017). The
revised EO bars travelers from six countries from entering the U.S. for 90 days
from when the EO takes effect, to allow the government to review its vetting
procedures. It also imposes a 120-day bar on refugees entering the country.

Visas issued
prior to June 29 will not be revoked. However, unless they can establish a
“bona fide relationship” with certain U.S.-based family or a U.S.-based entity,
visas will no longer be issued to individuals from the following six designated
countries:

Iran

Libya

Somalia

Sudan

Syria

Yemen

The State
Department said that it planned to keep travelers informed and deploy the
travel bans “in a professional, organized and timely way.”

Who is exempt from
the revised Executive Order?

Many
individuals from the six designated countries are not subject to the revised
Executive Order at all. They include the following:

Individuals with
currently valid immigrant and nonimmigrant visas and individuals with
advance parole

Dual nationals
traveling on a passport issued by a non-designated country

Individuals
travelling on diplomatic or diplomatic-like visas

Who will be allowed
to travel to the United States based upon the Court’s ruling?

The Supreme
Court, in a broadly stated opinion, allowed individuals from the designated
countries who have a “bona fide relationship” with a U.S. individual or entity
to remain eligible for a visa and travel to the U.S. The Court provided some
examples, including:

Individuals who
have accepted an offer of employment from a U.S. entity

Individuals who
wish to visit or live with a close family member

Students admitted
to a U.S. university

Lecturers invited
to address a U.S. audience

Who is precluded from
travel to the United States based upon the Court’s ruling?

Individuals
from one of the designated countries without “bona fide” connections are
subject the revised Executive Order pursuant to the Court’s ruling. Such
individuals may include:

Tourists for
pleasure without a bona fide connection to family in the U.S.

Refugees who have
no established relationship with a U.S. entity or a U.S. family member

Individuals who
have instituted relationships with U.S. entities only for the purpose of
exemption from the reinstated travel bans

How will the
Department of Homeland Security and the State Department implement the revised
Executive Order?

According to
the initial government implementation guidance, individuals from the affected
countries seeking a new visa must prove a bona fide relationship with a close
family member or a U.S. entity.

The guidance
said a close family relationship is being a parent (including an in-law),
spouse, child, adult son or daughter, son-in-law, daughter-in-law, or sibling,
including a step-sibling and other step-family.

Close family
specifically does not include a grandparent, grandchild, aunt, uncle, niece,
nephew, cousin, brother-in-law, sister-in-law, fiancé, or other extended family
members.

The guidance
said a bona fide relationship with a U.S. entity includes broad categories of
individuals such as journalists, students, workers, or lecturers with valid
invitations or employment contracts in the U.S. The guidance said that a hotel
reservation or car rental agreement, even if it was prepaid, would not count. A
“bona fide” relationship does not include any individual seeking a relationship
with a U.S. entity for the purpose of avoiding the travel ban.

Those applying
for Diversity Lottery Visas will have to prove that they have a relevant bona
fide relationship.

Consular or
Customs and Border Protection (CBP) officers, in their discretion, should still
be able to grant waivers provided in the revised EO. These waivers can be
granted on a case-by-case basis if the officer finds that denying entry would
cause an undue hardship, the individual does not pose a threat to national
security, and it would be in the national interest to grant the waiver to:

Individuals with
previously established significant contacts with the U.S.

Individuals with
significant business or professional obligations in the U.S.

Individuals travelling
for business with a recognized international organization or the U.S.
government

Legal residents of
Canada who apply for a visa in Canada

Under the
limited State Department guidance, those who might be affected by the travel
ban unless they receive a Consular waiver include the following:

Individuals
applying for immigrant visas based upon petitions that do not necessarily
require a U.S. sponsor, such as EB-1 Extraordinary Ability Petitions and
EB-2 National Interest Waiver Petitions

Business visitors
coming for conferences, meetings, or non-contractual purposes

Refugees who only
have a relationship with a resettlement agency

Individuals
applying for Fiancé (K) visas

Will individuals
already issued visas be allowed to travel to the U.S. or will they separately
have to establish a bona fide relationship?

Initial
information is that visas issued prior to June 29, 2017, at 8:00 p.m., will not
be revoked under the new travel rules. Early indication from CBP is that they
expect minimal impact at U.S. ports of entry, because all individuals already
in possession of valid visas will be authorized to travel. However, in light of
confusion at the airports in January 2017 with implementation of the initial
travel ban (issued shortly after President Trump’s inauguration), individuals
from the six designated countries should be prepared for potential delays at
the airport as these new processes are rolled out.

Are individuals who
are not directly covered by the Executive Order potentially subject to
additional or extreme vetting?

While it
appears that the travel ban as reinstated by the Supreme Court may affect a
limited number of individuals, a much broader category of individuals may be
subject to extreme vetting when applying for visas or for admission to the U.S.

The government
recently released its new DS-5535 Form that can be used by consular officials
to assess whether an individual should be admitted to the U.S. With the form as
a reference, CBP officers at the port of entry might choose to ask for some of
this information to determine admissibility.

The DS-5535
Form requests:

15 years of travel
history

15 years of
address history

Information on all
spouses, partners, siblings, and children

Identification of
all websites or applications used to create or share content over a
five-year period

Any
individuals might be asked for this information, but the following may be more
“at risk”:

Individuals from
the six designated countries

Individuals who
have travelled to those countries or other “suspect” countries

Individuals who
are dual nationals where one nationality is “suspect”

Individuals who
have previously been subjected to background checks or visa delays

Individuals who
have previously been taken to secondary inspection

Individuals who
previously were subject to National Security Entry-Exit Registration
System (NSEERS) registration

Individuals who
study or work with technologies that might be considered “dual use”
technologies

Individuals with
common names or individuals with inconsistent names on immigration documents

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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